How to Start a Legal Separation

Marriage is a legal, long-term partnership between two people who love each other and share their lives. Unfortunately, marriage might not always be the happy ending you imagined. Sometimes spouses realize that they want to live independently of each other, but there are compelling reasons to avoid divorce. A legal separation agreement might be an option in these cases.

What is Legal Separation?

As with divorce, legal separation is legally binding. Spouses live separately and maintain independent personal lives, but remain eligible to receive the financial and insurance benefits of a married couple because the legal ties of marriage remain intact. Both spouses sign a legal separation agreement that sets out the details of important issues like:

• Division of property and debt
• Child custody and visitation rights
• Child and spousal support
• Business ownership interests
• Legal fees

When to Choose Legal Separation

If you are considering divorce, when might you pursue legal separation instead? There are several situations or reasons that lead couples to choose legal separation, including:

• Residency requirements – California requires that at least one of the spouses be a resident of the state for 6 months and in the United States for at least 3 months before divorcing. Legal separation requires only one spouse to live in California with no time requirement.
• Personal beliefs – Some people or families are personally opposed to divorce, so alternative options are preferable.  
• Religious beliefs – Many religions view marriage as sacred, so divorce is discouraged.
• No waiting period – In divorce, couples must wait 6 months from the time divorce papers were first served. Legal separation has no waiting period.
• Insurance benefits – If one spouse is covered on the other spouse’s health care plan, they can continue to receive benefits.
• Convenience – Legal separation can sometimes be simpler, quicker, and more cost effective than divorce.

Starting the Process of Legal Separation

Once you’ve decided on legal separation, what steps should you take? 

• File a petition for legal separation. This court document is a legal document that begins the process in family court. You will pay a filing fee and serve the petition to your spouse, similar to divorce papers.
• Develop a separation agreement. You and your spouse should make decisions and outline the responsibilities of each party with regard to assets, debts, living expenses, custody and visitation of children, living arrangements, etc. Although this process can be done informally or through a mediator, it’s usually a good idea to get legal advice, especially if communication with your spouse is poor. If you cannot come to an agreement, the judge will step in and make decisions for you.
• Accept the family court’s final judgment of legal separation.

It’s important to remember that just living separately is not the same as legal separation.

Helping Spouses Establish Legal Separation

Because the legal separation agreement sometimes serves as the basis for a later divorce settlement, it’s vital to develop this document carefully. An experienced lawyer can help you consider the future impact of both your personal and financial decisions. 

The family law attorneys at Lonich Patton Ehrlich Policastri have a great deal of experience with clients who choose legal separation whether because of religious, financial, or business considerations. Contact us today at 408-553-0801 for a free, 30-minute consultation to discuss your goals and options. We can walk you through the process and make sure your best interests are protected.

 

Disclaimer: this article does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.